Brian Nelson v. Michael J Astrue, No. 5:2010cv00804 - Document 15 (C.D. Cal. 2011)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Margaret A. Nagle. IT IS ORDERED that the decision of the Commissioner is REVERSED, and this case is REMANDED forfurther proceedings consistent with this Memorandum Opinion and Order. (mz)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 BRIAN NELSON, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner of Social Security, ) ) Defendant. ) ___________________________________) NO. EDCV 10-00804-MAN MEMORANDUM OPINION AND ORDER 17 18 Plaintiff filed a Complaint on June 11, 2010, seeking review of the 19 denial by ( Commissioner ) of 20 plaintiff s application for supplemental security income ( SSI ). On 21 July 9, 2010, the parties consented to proceed, pursuant to 28 U.S.C. § 22 636(c), before the undersigned United States Magistrate Judge. 23 parties filed a Joint Stipulation on February 14, 2011, in which: 24 plaintiff seeks an order reversing the Commissioner s decision, awarding 25 plaintiff costs and reasonable attorneys fees pursuant to the Equal 26 Access to Justice Act, 28 U.S.C.A. § 2412(d), and remanding this case 27 for 28 administrative the the Social payment of Security benefits proceedings; and Commissioner or, alternatively, defendant requests for The further that the 1 Commissioner s decision be affirmed. The Court has taken the parties 2 Joint Stipulation under submission without oral argument. 3 4 SUMMARY OF ADMINISTRATIVE PROCEEDINGS 5 6 On January, 25, 2006, plaintiff filed an application for SSI. 7 (Administrative Record ( A.R. ) 14.) Plaintiff, who was born on 8 September 4, 1960,1 claims to have been disabled since January 1, 1999, 9 due to seizures, total hip replacement, right thigh damage, back, right 10 knee, and left shoulder pain.2 11 relevant work experience as a printer feeder. (A.R. 44-54.) Plaintiff has past (A.R. 21.) 12 13 After the Commissioner denied plaintiff s claim initially and upon 14 reconsideration (A.R. 44-54), plaintiff requested a hearing. (A.R. 55- 15 56.) 16 appeared and testified at a hearing before Administrative Law Judge F. 17 Keith Varni (the ALJ ). (A.R. 31-41.) 18 denied (A.R. 19 subsequently denied plaintiff s request for review of the ALJ s decision 20 (A.R. 1-3). 21 /// 22 /// On June 16, 2008, plaintiff, who was represented by counsel, plaintiff s claim 14-22), On July 10, 2008, the ALJ and the Appeals Council That decision is now at issue in this action. 23 24 1 25 On the date the application for SSI was filed, plaintiff was 45 years old, which is defined as a younger individual. (A.R. 21; citing C.F.R. § 416.964.) 26 2 27 28 Plaintiff claimed only seizures, total hip replacement, and right thigh damage on his initial SSI claim (A.R. 44-48); on appeal, he added back pain, right knee pain, left shoulder pain, and panic attacks to his list of impairments (A.R. 49-54). 2 1 SUMMARY OF ADMINISTRATIVE DECISION 2 3 The ALJ found that plaintiff has not engaged in substantial gainful 4 activity since January 25, 2006, the application date. 5 ALJ 6 musculoskeletal system.3 7 does not have an impairment or combination of impairments that meets or 8 medically equals in severity any impairment listed in 20 C.F.R. Part 9 404, Subpart P, Appendix 1 (20 C.F.R. §§ 416.920(d), 416.925, 416.926). 10 determined that plaintiff (Id.) has severe (A.R. 16.) impairments in The the The ALJ also determined that plaintiff (A.R. 17.) 11 12 After reviewing the record, the ALJ determined that plaintiff has 13 the residual functional capacity ( RFC ) to perform light work as 14 defined in 20 C.F.R. § 416.967(b), except plaintiff is precluded from 15 pushing and/or pulling with the right lower extremity[,] and he is 16 limited to occasional postural activities. 4 (A.R. 17.) 17 18 3 24 On January 17, 2007, Dr. Reynaldo Abejuela, a psychiatrist, diagnosed plaintiff with mild depression, mild anxiety, and an alcoholinduced mood disorder, but determined that plaintiff s occupational and social functioning impairment is none to mild. (A.R. 224-31.) Based on this report, and the fact that plaintiff has never been psychiatrically hospitalized or participated in psychotherapy, the ALJ found plaintiff s mental disorders to be non-severe. (A.R. 16-17.) The ALJ also considered substance abuse as a basis for disability, but determined that [plaintiff] s mood disorder would still be present absent substance abuse and, therefore, substance abuse is not material to a finding of disabled. (A.R. 16.) The ALJ briefly mentioned plaintiff s history of seizures, but did not appear to consider it further. (A.R. 17.) 25 4 19 20 21 22 23 26 27 28 The ALJ relied heavily on the RFC assessment of State Agency Review physician Dr. Sainten, M.D., who found: plaintiff could lift 20 pounds occasionally, 10 pounds often; could stand or walk six hours in an eight hour day and sit for six hours with appropriate breaks; pushing and pulling was limited in the right lower extremity; and climbing, stooping, kneeling, and crouching should be limited to occasionally. (A.R. 182-88.) 3 1 The ALJ concluded that plaintiff s past relevant work as a printer 2 feeder requires the performance of work-related activities precluded by 3 plaintiff s 4 [t]ransferability of job skills is not material to the determination of 5 disability because using the Medical-Vocational Rules as a framework 6 supports a finding that [plaintiff] is not disabled, whether or not 7 [plaintiff] has transferable job skills. 8 based on plaintiff s age, education, work experience, and RFC, there are 9 jobs that exist in significant numbers in the national economy that RFC. (A.R. 21.) (Id.) The ALJ further (Id.) concluded that The ALJ found that 10 plaintiff can perform. Accordingly, the ALJ concluded that 11 plaintiff has not been disabled within the meaning of the Social 12 Security Act from January 25, 2006, the date the application was filed, 13 through the date of his decision. (A.R. 22.) 14 15 STANDARD OF REVIEW 16 17 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner s 18 decision to determine whether it is free from legal error and supported 19 by substantial evidence in the record as a whole. 20 F.3d 625, 630 (9th Cir. 2007). 21 evidence as a reasonable mind might accept as adequate to support a 22 conclusion. 23 a mere scintilla but not necessarily a preponderance. 24 Barnhart, 340 F.3d 871, 873 (9th Cir. 2003). While inferences from the 25 record can constitute substantial evidence, only those reasonably drawn 26 from the record will suffice. 27 1066 (9th Cir. 2006)(citation omitted). Orn v. Astrue, 495 Substantial evidence is such relevant Id. (citation omitted). The evidence must be more than Connett v. Widmark v. Barnhart, 454 F.3d 1063, 28 4 1 Although this Court cannot substitute its discretion for that of 2 the Commissioner, the Court nonetheless must review the record as a 3 whole, weighing both the evidence that supports and the evidence that 4 detracts from the [Commissioner s] conclusion. 5 Health and Hum. Servs., 846 F.2d 573, 576 (9th Cir. 1988); see also 6 Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). 7 responsible for determining credibility, resolving conflicts in medical 8 testimony, and for resolving ambiguities. 9 1035, 1039 (9th Cir. 1995). Desrosiers v. Sec y of The ALJ is Andrews v. Shalala, 53 F.3d 10 The Court will uphold the Commissioner s decision when the evidence 11 12 is susceptible to more than one rational interpretation. Burch v. 13 Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 14 review only the reasons stated by the ALJ in his decision and may not 15 affirm the ALJ on a ground upon which he did not rely. 16 at 630; see also Connett, 340 F.3d at 874. 17 the Commissioner s decision if it is based on harmless error, which 18 exists only when it is clear from the record that an ALJ s error was 19 inconsequential to the ultimate nondisability determination. Robbins 20 v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006)(quoting Stout v. 21 Comm r, 454 F.3d 1050, 1055 (9th Cir. 2006)); see also Burch, 400 F.3d 22 at 679. However, the Court may Orn, 495 F.3d The Court will not reverse 23 DISCUSSION 24 25 Plaintiff makes the following claims: 26 (1) the ALJ improperly 27 determined not to obtain the testimony of a vocational expert; and (2) 28 the ALJ failed to give clear and 5 convincing reasons for finding 1 plaintiff to be not credible. (Joint Stipulation ( Joint Stip. ) at 2.) 2 The Court addresses these issues, in reverse order, below. 3 4 5 I. The ALJ Failed To Give Clear And Convincing Reasons For Finding Plaintiff s Testimony To Be Not Credible. 6 7 Once a disability claimant produces objective evidence of an 8 underlying impairment that is reasonably likely to be the source of his 9 subjective symptom(s), all subjective testimony as to the severity of Moisa v. Barnhart, 367 F.3d 882, 885 10 the symptoms must be considered. 11 (9th Cir. 2004); Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 12 1991)(en banc); see also 20 C.F.R. § 416.929© (explaining how pain and 13 other symptoms are evaluated). 14 malingering based on affirmative evidence thereof, he or she may only 15 find an applicant not credible by making specific findings as to 16 credibility and stating clear and convincing reasons for each. Robbins 17 v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006). 18 be considered in weighing a claimant s credibility include: 19 claimant s reputation for truthfulness; (2) inconsistencies either in 20 the claimant s testimony or between the claimant s testimony and his 21 conduct; (3) the claimant s daily activities; (4) the claimant s work 22 record; and (5) testimony from physicians and third parties concerning 23 the nature, severity, and effect of the symptoms of which the claimant 24 complains. 25 2002); see also 20 C.F.R. § 416.929(a). [U]nless an ALJ makes a finding of The factors to (1) the See Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 26 27 28 The ALJ found that plaintiff s medically determinable impairments could reasonably be expected to produce the alleged symptoms. 6 (A.R. 1 18.) Further, the ALJ cited no evidence of malingering by plaintiff. 2 Accordingly, the ALJ s reason for rejecting plaintiff s credibility must 3 be clear and convincing. 4 5 In his decision, the ALJ stated that plaintiff s statements 6 concerning the intensity, 7 [plaintiff s] 8 inconsistent with the [RFC] assessment. 9 ALJ found plaintiff to be not credible because: symptoms are persistence not and credible to limiting the (A.R. 18.) effects extent they of are Specifically, the (1) the treatment 10 records suggest that [plaintiff] s symptoms [are] not as severe as he 11 alleges (A.R. 18); (2) [plaintiff] s physician suggested [plaintiff] 12 exhibited drug-seeking behavior (Id); (3) plaintiff s testimony is 13 inconsistent with his own statements and his son s statements in the 14 record (A.R. 20); and (4) plaintiff basically dropped out of the labor 15 market in 1995 and has not even looked for work since that time (A.R. 16 20-21). 17 18 The ALJ s first ground for finding plaintiff s statements not 19 credible is not clear and convincing. On February 12, 2006, in an 20 exertional daily activity questionnaire, plaintiff claimed that, after 21 his hip replacement, his leg was weak and it was painful to walk, but 22 that he could walk to the store and back, which took about 20 minutes. 23 (A.R. 100-05.) 24 position or stand for a short time. 25 and clean in spurts, but the pain was always present. 26 able to do light lifting, such as picking up a bag of food from the 27 store, and he could mow his small lawn, which took about ten minutes, 28 when he [felt] good, otherwise his children would do it. Plaintiff claimed that he could only stay in a seated 7 (Id.) He could do laundry, cook, (Id.) He was (Id.) He 1 tried to perform all the chores he used to do, but it was just more 2 difficult now and he could only do a little at a time. (Id.) 3 4 On a functional report dated November 20, 2006, plaintiff claimed 5 similar limitations. (A.R. 117-25.) 6 three his 7 stopping; and did as much cooking, cleaning, and laundry as he could. 8 (Id.) 9 was on medication, and the extent of the activity he could perform 10 teens; walked dog; could He said that he took care of his walk about 300 yards without He said that he could only do household and yard chores when he depended on his pain that day. (Id.) 11 12 Contrary to the ALJ s findings, plaintiff s statements about his 13 limited 14 Plaintiff s treatment history shows that he has a history of 15 related to degenerative musculoskeletal conditions. 16 January 1999, plaintiff was first diagnosed with hip problems and 17 prescribed physical therapy and Voltaren. 18 imaging performed in April and May 2001 showed evidence of disc bulging, 19 mild degenerative disc disease of the lumbar spine, mild atrophy in the 20 lower right extremity, mild facet hypertrophy of the spine, mild 21 posterior endplate osteophytosis, mild right neural foraminal stenosis, 22 and transitional vertebrae, for which plaintiff was prescribed Vicodin 23 and epidural injections. abilities are not unsupported by the medical record. pain Specifically, in (A.R. 175.) Diagnostic (A.R. 144-81, 190-96, 258-74.) 24 25 An x-ray of plaintiff s hip taken in May 2002 showed severe right 26 degenerative change and/or superimposing aseptic necrosis of the right 27 femoral head. 28 physician, Dr. Karim A. Shaikley, M.D., an orthopaedic surgeon, reported (A.R. 162.) On June 19, 2002, plaintiff s treating 8 1 that plaintiff: (1) had been complaining of hip pain for the past two 2 years; (2) had severe shoulder pain after a significant fall caused by 3 a seizure; (3) was limping; (4) needed an articular fragment removed 4 from his left shoulder; and (5) needed a total right hip replacement.5 5 (A.R. 161.) 6 7 In March 2003, plaintiff was prescribed Vicodin for pain in his 8 knee. (A.R. 157.) Diagnostic imaging of the right knee taken on July 9 11, 2003, showed demineralization of the bone, a shallow concave 10 articular 11 osteochindrites dessicans. 12 findings showed a decreased range of motion and slight swelling of the 13 right knee. 14 joint disease of the knee and was treated with prescription pain 15 medication. defect on the (A.R. 150.) right lateral (A.R. 156.) femoral condyle, and In August 2005, examination Plaintiff was diagnosed with degenerative (Id.) 16 17 On March 17, 2006, plaintiff was diagnosed with muscle cramps and 18 was prescribed Ultram, a pain medication used to treat moderately severe 19 pain, and Baclofen, a muscle relaxer. 20 11, 2006, shows that plaintiff was on Dilantin for his seizures, 21 Tramadol for pain, and continued to be on Baclofen. 22 22, 2007, plaintiff was diagnosed with right thigh pain and mild 23 quadriceps atrophy and was prescribed physical therapy and a right knee 24 stabilizing brace. 25 with right knee arthralgia, with a possible internal derangement, and 26 right quadriceps atrophy. (A.R. 277.) (A.R. 148.) A report dated May (A.R. 183.) On May On August 1, 2007, he was diagnosed (A.R. 278.) On September 5, 2007, a CT scan 27 5 28 2003. Plaintiff underwent total right hip replacement surgery in (A.R. 145.) 9 1 showed no derangement of the knee, but plaintiff was still experiencing 2 pain. (A.R. 279.) 3 4 In 2008, plaintiff started to have problems with his left hip, and 5 on May 22, 2008, he was diagnosed with left hip arthralgia, moderate 6 degenerative joint disease of the left hip, and questionable avascular 7 necrosis. 8 range of motion, and he was found by the treating physician to be able 9 to bear only 80% of his body weight.6 (A.R. 281.) He had tenderness to palpitation and decreased (Id.) 10 11 Plaintiff s statements in 2006 -- that he could lift only light 12 weight, walk 300 yards or 20 minutes, cook and take care of teenagers 13 (aged 14, 18, and 19), and perform house and yard chores in spurts 14 with medication -- are not inconsistent with a history a musculoskeletal 15 disorders, surgery, and pain medication. 16 claims 17 consistent with his worsening degenerative disease of the left hip and 18 another of more hip limited replacement abilities surgery.7 during The (A.R. 100-05, 117-25.) the hearing ALJ s in assertion 2008 - His are that 19 20 21 22 6 In a series of letters sent to the Appeals Council at the Office of Disability Adjudication and Review in which plaintiff sought more time for his new medical problems to be addressed, plaintiff claimed that he had a full left hip replacement surgery on August 20, 2008. (A.R. 23, 25, 27-28.) No medical records verifying that the surgery took place have been added to the record. 23 7 24 25 26 27 28 During his testimony before the ALJ, plaintiff claimed that: his left hip started to hurt eight months prior; he can t walk at all without medication and, even with medication, walking is painful; the pain in his left side is pretty much unbearable ; total [left] hip replacement needs to be done ; he can walk I don t know, twenty yards maybe and then . . . [has] to stop ; he has fallen down a couple times ; he can sit in one position for no more than 20 minutes before either getting up or laying down; he can stand for only 20 minutes before needing to sit or lay down; he spends his days resting, watching movies, and periodically cooking; right now he is not supposed to 10 1 plaintiff s treatment records show that his symptoms are not as severe 2 as plaintiff alleges - is, therefore, not clear and convincing.8 3 4 The ALJ s second ground for rejecting plaintiff s subjective pain 5 testimony is also not clear and convincing. 6 seeking 7 evidence cited by the ALJ -- namely, that in August 2005, [one of 8 plaintiff] s physicians suggested that [plaintiff] exhibited drug- 9 seeking behavior -- does not constitute clear and convincing evidence 10 to support the conclusion that plaintiff s entire testimony is not 11 credible.9 12 a course of ten years, many of whom prescribed him various types of pain 13 medication. 14 medical records, says that plaintiff exhibited drug-seeking behavior is behavior could (A.R. 18.) detract from While evidence of drug- plaintiff s credibility, the Plaintiff saw numerous treating physicians over The fact that one page, out of more than 200 pages of 15 16 lift anything, and that they say he can lift zero to five pounds right now. (A.R. 31-41.) 17 8 22 To the extent the ALJ rejects plaintiff s subjective pain testimony because plaintiff has received conservative treatment, the ALJ s reasoning is not clear and convincing. While evidence of conservative treatment is sufficient to discount a claimant s testimony regarding severity of an impairment, Parra v. Astrue, 481 F.3d 742, 751 (9th Cir. 2007), substantial evidence of record does not support the finding that plaintiff s pain treatment was conservative in nature. Indeed, as noted supra, plaintiff was prescribed strong medications, including, inter alia, Vicodin and Ultram, and underwent two surgeries to help alleviate his pain. Accordingly, the ALJ s reasoning is unpersuasive. 23 9 18 19 20 21 24 25 26 27 28 Several cases approve discounting the testimony of a claimant who has engaged in drug-seeking behavior, . . . but none has defined what constitutes drug-seeking behavior. Kellems v. Astrue, 2010 U.S.App. LEXIS 13263, *8 (7th Cir. 2010). However, [plaintiffs] in these cases do have a common thread, . . . each obtained, or attempted to obtain, pain medication by deceiving or manipulating a medical professional. Id.; see, e.g., Edlund v. Massanari, 253 F.3d 1152, 1157 (9th Cir. 2001); Simila v. Astrue, 573 F.3d 503, 519 (7th Cir. 2009); Poppa v. Astrue, 569 F.3d 1167, 1171 (10th Cir 2009); Berger v. Astrue, 516 F.3d 538, 546 (7th Cir. 2008); Anderson v. Barnhart, 344 F.3d 809, 815 (8th Cir. 2003). 11 1 not a clear and convincing reason to discredit the entirety of 2 plaintiff s testimony. (A.R. 196.) In fact, instead of detracting from 3 plaintiff s credibility, plaintiff s behavior could support a finding of 4 significant pain. 5 2001)(noting that plaintiff s constant quest for medical treatment and 6 pain relief refuted the ALJ s finding that claimant lacked credibility 7 about her pain and physical limitations). See Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 8 9 The ALJ s third ground for rejecting plaintiff s subjective pain 10 testimony is also not clear and convincing. 11 plaintiff s testimony that he cooked, but otherwise he did nothing but 12 watch television, was inconsistent with the plaintiff s statements in 13 the record, as well as the statements of plaintiff s son, which reflect 14 that he is independent for all self-care activities, performs a variety 15 of 16 purposeful activity when he is motivated to do so. daily activities, interacts well with The ALJ stated that others, and engages in (A.R. 20.) 17 18 The Court does not find plaintiff s statements to be inconsistent. 19 The 20 completed by plaintiff in 2006, described above, and the assessment 21 completed by his son in 2006,10 portrayed plaintiff to be more able and exertional daily activity questionnaire and functional report 22 23 24 25 26 27 28 10 Plaintiff s son, Trent Kevin Nelson, completed a functional report on December, 18, 2006, in which he described his father as being able to: get the kids to school; take the dog to get a paper; walk for 20 minutes without resting; take care of personal grooming; remember to take medicine; prepare sandwiches and frozen dinners; clean and feed the dog; do chores, both indoors and outdoors, whenever he can, it depends on how many meds he takes ; go to the grocery store two times a month; handle money and finances; watch his son s football games; and spend time with his own father; but he has trouble walk sit etc. (sic), and lifting, squatting, bending, standing, reaching, walking, sitting, kneeling, hearing, stair climbing, seeing, and memory have been affected 12 1 active than his testimony in 2008, also described above, portray him to 2 be. 3 a 4 plaintiff s 5 degenerative diseases of the hip and knee -- both of which would be 6 expected to worsen over time. 7 full left hip replacement just two months after his testimony, so it 8 would be expected that his abilities were more limited in 2008 than in 9 2006. Further, plaintiff s testimony in 2008 includes temporal language 10 such as, right now I m not supposed to lift anything, which indicates 11 that his testimony refers only to his current condition -- i.e., two 12 months prior to major surgery -- and not to his abilities over the 13 period of the last few years. 14 reasons the Court does not find this a clear and convincing reason to 15 discredit plaintiff s testimony. This does not make plaintiff s statements inconsistent. two-year difference between testimony, and the statements plaintiff has in been the There is record diagnosed and with Also, it appears that plaintiff had a (A.R. 37; emphasis added.) For these 16 17 The ALJ s final ground is also not clear and convincing. While a 18 poor work record may negatively affect a plaintiff s credibility, see 19 Thomas, 278 F.3d at 958-59, this alone is not a clear and convincing 20 reason for discrediting plaintiff s entire testimony. 21 that plaintiff s earnings record reflects that he basically dropped out 22 of the labor market in 1995[,] and he has not even looked for work since 23 that time. 24 the end of 1995, because [his] hip went out and [he] stayed home to (A.R. 20-21.) The ALJ stated Plaintiff claims that he stopped working at 25 26 27 28 by his conditions; and he should use a cane or walker. 13 (A.R. 126-33.) 1 take care of [his] kids. 11 (A.R. 94.) While a plaintiff s work history 2 is a valid consideration, and in this instance, plaintiff is far from a 3 model worker, it alone is not a clear and convincing reason for 4 rejecting plaintiff s credibility. 5 6 Accordingly, for the aforementioned reasons, the ALJ failed to give 7 clear and convincing reasons, as required, for discrediting plaintiff. 8 9 II. The ALJ Must Review And Reconsider The Need For A Vocational Expert. 10 11 12 Plaintiff contends that the ALJ erred in using the Grids as a 13 framework to determine that plaintiff was capable of performing other 14 work in the national economy, rather than seeking testimony from a 15 vocational expert. 16 a 17 nonexertional limitations such as postural limitations and pain, the ALJ 18 may apply the Grids, at step five, to match claimant with appropriate 19 work. 20 Reddick v. Chater, 157 F.3d 715, 729 (9th Cir. 1998); Burkhart v. Bowen, 21 856 F.2d 1335, 1340 (9th Cir. 1988). 22 [G]rids in lieu of taking testimony of a vocational expert only when the 23 [G]rids accurately and completely describe the claimant s abilities and 24 limitations . . . . 25 also Holohan, 246 F.3d at 1208 (as the Grids are based only on strength claimant (Joint Stip. at 2-3.) suffers only from It is well-settled that when exertional limitations, has no Holohan v. Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001); However, an ALJ may apply the Reddick, 157 F.3d at 729 (emphasis added); see 26 27 11 28 However, on the same form he said he became unable to work because of his condition in the beginning of 1999. (A.R. 94.) 14 1 factors, they are sufficient to meet the Commissioner s burden at step 2 five only when claimant suffers only from the exertional limitations ). 3 4 Based on the fact that the ALJ must reconsider plaintiff s 5 testimony regarding his pain and limitations, on remand, the ALJ s 6 ultimate RFC assessment may change. 7 plaintiff s non-exertional postural limitations and pain significantly 8 limit the range of work permitted by his exertional limitations, the ALJ 9 must seek testimony from a vocational expert.12 If, on remand, the ALJ finds that See Reddick, 157 F.3d 10 at 729 (because the claimant had non-exertional limitations, it was 11 error not to seek the testimony of a vocational expert); Desrosiers, 846 12 F.2d 13 limitations barring repeated stooping or bending prevented the claimant 14 from performing the full range of light work, making use of the Grids 15 inappropriate). at 580 (Pregerson, J., concurring)(stating that postural 16 17 III. Remand Is Required. 18 19 The decision whether to remand for further proceedings or order an 20 immediate award of benefits is within the district court s discretion. 21 Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000). 22 useful purpose would be served by further administrative proceedings, or 23 where the record has been fully developed, it is appropriate to exercise 24 this discretion to direct an immediate award of benefits. 25 ( [T]he decision of whether to remand for further proceedings turns upon Where no Id. at 1179 26 27 28 12 The ALJ also needs to account for plaintiff s non-severe mental conditions and seizure disorder in deciding whether to use a vocational expert. 15 1 the likely utility of such proceedings. ). However, where there are 2 outstanding issues that must be resolved before a determination of 3 disability can be made, and it is not clear from the record that the ALJ 4 would be required to find the claimant disabled if all the evidence were 5 properly evaluated, remand is appropriate. Id. at 1179-81. 6 7 Remand is the appropriate remedy to allow the ALJ the opportunity 8 to remedy the above-mentioned deficiencies and errors. See, e.g., 9 Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004)(remand for 10 further proceedings is appropriate if enhancement of the record would be 11 useful; McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989)(remand 12 appropriate to remedy defects in the record). 13 14 On remand, the ALJ must either credit plaintiff s testimony or give 15 clear and convincing reasons why plaintiff s testimony is not credible. 16 After so doing, the ALJ may need to reassess plaintiff s RFC, in which 17 case, testimony from a vocational expert likely will be needed to 18 determine what work, if any, plaintiff can perform. 19 need to further develop the record with regard to plaintiff s full left 20 hip replacement and any effect that may have on plaintiff s RFC. 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 16 Also, the ALJ may 1 CONCLUSION 2 3 Accordingly, for the reasons stated above IT IS ORDERED that the 4 decision of the Commissioner is REVERSED, and this case is REMANDED for 5 further proceedings consistent with this Memorandum Opinion and Order. 6 7 IT IS FURTHER ORDERED that the Clerk of the Court shall serve 8 copies of this Memorandum Opinion and Order and the Judgment on counsel 9 for plaintiff and for defendant. 10 11 LET JUDGMENT BE ENTERED ACCORDINGLY. 12 13 14 15 DATED: August 9, 2011 ______________________________ MARGARET A. NAGLE UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 17
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